The Allahabad High Court has held that restaurants in Uttar Pradesh cannot provide hookah service even in Designated Smoking Areas, because the amended Rule 4(3) of the Prohibition of Smoking in Public Places Rules, 2008 prohibits any service in a smoking area, and that a non-smoker’s right to clean air under Article 21 cannot be abridged by the commercial interest of an establishment.
Prayagraj: The Allahabad High Court has held that hookah bars cannot operate in Uttar Pradesh and that hookah service cannot be provided even in Designated Smoking Areas, dismissing a batch of connected petitions by restaurant owners against police action over the running of hookah bars [Batch of connected petitions on hookah bars in Uttar Pradesh].
A Bench of Justice Shekhar B. Saraf and Justice Abdhesh Kumar Chaudhary held that the operation of hookah bars and the rendering of hookah services by restaurants in the State is a “flagrant violation” of Rule 4(3) of the Prohibition of Smoking in Public Places Rules, 2008, as amended in 2017, and is contrary to the scheme and object of the Cigarettes and Other Tobacco Products Act, 2003 (COTPA). The ruling was reported on Tuesday, September 29, and LawChakra has not yet reviewed the full judgment.
The question before the Court
The issue was not whether smoking tobacco through a hookah, in isolation, is prohibited. The question was whether restaurants and similar establishments can provide hookah as a service in a Designated Smoking Area. The Court answered in the negative.
It observed that the general rule under COTPA is a prohibition of smoking in public places, and that a Designated Smoking Area is an exception to that rule. While such an area permits smoking, it does not permit a restaurant to provide hookah service, because the amended Rule 4(3) prohibits “any service” in a smoking area.
The 2017 amendment and Narinder S. Chadha
The Court relied heavily on the 2017 amendment to Rule 4(3). Before it, the rule provided that a smoking area was to be used only for smoking and that no other service would be allowed. In Narinder S. Chadha v. Municipal Corporation of Greater Mumbai, the Supreme Court held that smoking through a hookah is smoking within the meaning of COTPA, and that the words “no other service” referred to services other than the provision of a hookah, so that hookah smoking was permissible under the rule as it then stood.
The Central Government later substituted Rule 4(3), which now says, “No service shall be allowed in any smoking area or space provided for smoking.” The High Court treated the change of language, from “other” services to any service, as material, and held that the Supreme Court’s interpretation must be understood in the context of the earlier wording. According to Bar & Bench, the Court described the amendment as an absolute and unqualified prohibition that admits no exception and covers the service of food, beverages, tobacco products, herbal products and hookah.
Clean air and the right to trade
On the constitutional question, the Bench held that the right of a non-smoker to breathe clean air in a public place is a fundamental right under Article 21 of the Constitution, and that this right cannot be abridged by the commercial interest of an establishment that invokes the right to trade under Article 19(1)(g). The Court said an establishment may rely on its right to trade, but that interest cannot be used to curtail a non-smoker’s right in a public place.
Self-service and rental arguments rejected
The petitioners argued that restaurants could adopt a self-service model, in which the hookah is prepared and handed over and the customer then smokes it without help. The Court did not accept this. It noted that preparing a hookah involves several steps, including assembling the apparatus, placing tobacco in the bowl, filling the base with water, preparing the foil and placing heated charcoal, that the process needs expertise, and that it cannot realistically be treated as ordinary self-service by untrained patrons.
The petitioners also argued that supplying the apparatus was a rental and not a service. The Court distinguished ordinary rentals, where possession and control pass to the customer. Since the customer must consume the hookah inside the Designated Smoking Area, it held, the patron is being provided a service. It also considered the assistance ordinarily needed, such as replenishing charcoal, removing ash and changing tobacco, and held that preparing, assembling, delivering, lighting, replenishing and maintaining a hookah for consideration amounts to rendering a service. The substance of the transaction, and not the label used by the establishment, decides the matter.
Licensing and police powers
The Court accepted the petitioners’ contention on one point. It held that the Food Safety Department and the Municipal Corporation cannot issue licences authorising the operation of hookah bars, because the food safety framework confers no such authority and the Municipal Corporation has no statutory provision empowering it to issue a separate hookah-bar licence.
It rejected the challenge to police enforcement, holding that Sections 12, 13 and 15 of COTPA empower police authorities to take steps to enforce the Act, including search, seizure, confiscation and penalties in appropriate cases.
Observations for the State
In the concluding part of the judgment, the Bench referred to laws adopted by States such as Gujarat, Punjab, Rajasthan, Maharashtra and Karnataka that deal specifically with hookah bars and provide for enhanced punishment and fines. It said it expected Uttar Pradesh to “rise to the occasion” and take the necessary steps, including considering a notification providing for stringent punishment for serving hookah in Designated Smoking Areas.
The Court also referred to the health concerns linked to hookah smoking and noted the misconception that hookah is necessarily less harmful than cigarettes. It directed that a copy of the judgment be sent to the Chief Secretary and the Director General of Police, Uttar Pradesh, for information and necessary compliance.
Why it matters
The ruling turns on a change in the wording of a rule and on how the Court read the earlier Supreme Court decision in that light. It means that, in Uttar Pradesh, a Designated Smoking Area does not by itself give a restaurant a lawful basis to offer hookah, and that the police can enforce COTPA against such service, while the Food Safety Department and the Municipal Corporation cannot license it.
The reported holding concerns the amended Rule 4(3) and the service of hookah in smoking areas. Whether and how it applies to arrangements different from those argued in these petitions will depend on the full text of the judgment, and other High Courts have taken their own views on hookah under COTPA. The reasons and directions summarised here are as reported and have not been checked against the written judgment.
Case: Batch of connected petitions by restaurant owners on hookah bars in Uttar Pradesh [case titles and numbers not yet available]
Bench: Justice Shekhar B. Saraf and Justice Abdhesh Kumar Chaudhary, Allahabad High Court
Date of Judgment: Reported on September 29, 2026